In an accident involving 2 cars, it is possible that both drivers are partially responsible for causing the accident. If that happens, can an injured driver still claim compensation for his injuries and losses against the other driver?

This scenario was recently reported in a decision from the Superior Court of Justice (Duncan v. Taylor, 2015).  Two vehicles were involved in a motor vehicle accident in which one of the drivers, the plaintiff, was seriously injured.  The plaintiff drove his vehicle from a side street onto a through street where the collision occurred.  The plaintiff was found guilty of failing to yield the right of way, pursuant to the Highway Traffic Act.

The plaintiff filed a civil lawsuit against the other driver for damages.  The defendant (other driver) filed a summary judgement motion to dismiss the plaintiff’s claim because of the guilty finding under the Highway Traffic Act.  Despite the plaintiff’s traffic violation, the judge rejected the defendant’s motion. He concluded that a trial was warranted to determine the conduct of both drivers and their credibility.  The plaintiff was not attempting to re-litigate a matter.  The proceedings under the Highway Traffic Act was separate.

The above incident raises a significant question. Can you file an injury claim against a negligent party if your actions also contributed to causing the accident? In a word, yes. Naturally, the circumstances of every case are different and unique but typically, one can file an injury claim against someone whose negligent actions caused their injuries, even if they made an error or were also negligent in some way. This relates to a legal term called “contributory negligence”.

In the 1951 case of Nance v. BC Electric Railway Co., contributory negligence was defined as, “a sharing of responsibility for damage where a person suffers damage as a result partly of his own fault and partly of the fault of any other person or persons”. Contributory negligence is a fairly common defense on the part of defendants in personal injury cases. It can have an influence on the amount of compensation the claimant receives. If a judge or jury finds the plaintiff guilty of contributory negligence, they may still receive significant compensation but likely not the full amount of damages awarded.

Some actions that may result in a finding of contributory negligence include: not wearing a seatbelt, walking onto a road without monitoring for traffic, wearing improper shoes on icy sidewalks, and being under the influence of alcohol. The importance of proper footwear was discussed in Miller v. Canada (Attorney General) 2015, where a man slipped on an icy sidewalk at a correctional facility. He was wearing running shoes which the court found to be inappropriate footwear for icy winter conditions. The court also found that the plaintiff was aware of the slippery condition of the sidewalk.The court determined that the plaintiff was 30 per cent liable for his injuries which meant that he received $70,000 of the $100,000 awarded in general damages (pain and suffering).

We all owe it to ourselves and others to act with due care and caution, not only when we get behind the wheel of our car, but in any other circumstance that has the potential for injury. However, it is important to understand your rights and know that even if you made a mistake or were negligent in some way, it does not automatically negate the other party’s liability or your right to be compensated for injuries you may have suffered.

Our professional and experienced team of lawyers at Burn Tucker Lachaîne have successfully represented many individuals who were hurt in car accidents, slip/trip and falls and other incidents resulting in personal injury. If you or someone you love was injured in an accident, do not hesitate to call or visit our website today to find out about your legal options for injury compensation.

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